In Anderson v. City and County of San Francisco, published July 2, 2014, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to the defendant county in a sex-discrimination lawsuit brought under Title VII and FEHA by a group of deputies who worked at county jails. In 2006, the then-sheriff adopted a policy prohibiting male deputies from supervising female inmates in the housing units of the jails. The sheriff adopted the policy to protect the female inmates from sexual misconduct by male deputies, to maintain security in light of female inmates' ability to manipulate male deputies and the deputies' fear of false allegations of sexual misconduct, to protect the inmates' privacy, and to promote rehabilitation of the inmates. The county asserted that the policy was permissible under sex-discrimination statutes as a bona fide occupational qualification, or BFOQ.
The district court ruled that issues of fact barred summary judgment. In granting summary judgment, the district court relied in part on deference to the sheriff's discretion. The 9th Circuit ruled that although such deference is a legitimate consideration, genuine issues of fact existed on whether the sheriff made a sufficiently reasoned and informed decision. Summary judgment therefore could not be based on that deference. The court further ruled that genuine issues of fact existed on whether gender was a BFOQ for supervising the female inmates. To establish a BFOQ, the county had to establish that the job qualification was reasonably necessary to the essence of its business, and that sex is a legitimate proxy for the qualification, because the county had a substantial basis for believing that all or nearly all men lack the qualification or that it was impossible or highly impractical to individually test for that qualification. Although all of the reasons the sheriff gave for the possibility were reasonably necessary to the essence of running the jail, issues of fact existed on whether all or nearly all men lacked the qualifications, or that was impossible or highly impractical to test them individually.
The court upheld the district court's award of only a fraction of attorney fees claimed by some plaintiffs who had settled; and affirmed summary judgment as to one plaintiff's retaliation claims, since the county had shown that there was no genuine issue of fact on his claims.